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HomeMy WebLinkAboutAkerstrom - Redwood Business Park of Ukiah, LLP - 03/19/2010 CROSS REFAGREEMENT REGARDING CONDITIONS OF APPROVAL FOR USE PERMIT NO. 09-31 This Agreement is entered in Ukiah, California, on , 2010 ("Effective Date") among the City of Ukiah ("City"), a general law municip corporation, Redwood Business Park of Ukiah, a California Limited Partnership ("RBP"), who is the owner of real property located at Ukiah, California, known as Mendocino County Assessor's Parcel Number 180-080-25 and Lot B l as shown on the Final Map of Redwood Business Park of Ukiah, Unit-I, filed in Map Case 2, Drawer 47, Page 24, Mendocino County Records (the "Property"), and Guillon, Inc., a California corporation ("Applicant"). RECITALS: 1. RBP has applied to subdivide the Property into two parcels, hereafter referred to as Lot B 1-A and B 1-B, which are depicted on the attached Exhibit A. 2. Applicant has applied for a Use Permit to construct a retail commercial building on Lot B1-B, which is proposed to be used as Sears Catalogue Store and/or other retail business(es) ("the Project"). 3. The City owns property located at 1320 Airport Road, also known as Mendocino County Assessor's Parcel No. 003-280-05 ("Corp Yard"), which has been used by the City as an operations center for municipal departments, including the City's public works department and its motor pool. 4. This City has and is currently undertaking an ongoing investigation of the release of contaminants, including petroleum hydrocarbons and fuel oxygenates (collectively "the impacts") to the environment from former underground fuel storage tanks ("USTs") located at the Corp Yard. 5. Lot 131 is located to the east of the Corp Yard on the east side of Airport Road and the railroad tracks which separate the Corp Yard from the Property. 6. RBP has installed a french drain along the western boundary of the Property which intercepts surface and groundwater on the Property and discharges that water to the storm drain system. 7. Monitoring wells installed by the City have detected impacts at the western and northern boundary of Lot B 1. 8. The North Coast Regional Water Quality Control Board ("Regional Board") has approved a Feasibility Study and Corrective Action Plan (FS/CAP) dated December 1, 2005, and a Remedial Action Plan, dated June 2007 ("Action Plan"), which include a work plan to further investigate and remediate the impact of the USTs on the Property. The FS/CAP calls for the installation of groundwater monitoring wells on the Property followed by quarterly sampling for a period of one-year. RBP, as owner of the Property, has or will enter an Access Agreement with the City, a true and correct copy of which is attached hereto as Exhibit B, which will provide the City with access both to Lot Bl-A and Lot Bl-B for the purposes stated in Exhibit B. 9. The City must protect the public health and safety on the Property and in the areas east and south of the Corp Yard and the Property from any adverse effects from the impacts. For these reasons, the City's Planning Department has proposed five conditions of approval for the Use Permit, which are set forth in the attached Exhibit C ("the Conditions"). 10. Compliance with the Conditions will increase the cost of the Project authorized by the Use Permit that would not otherwise be incurred. These costs are necessary to investigate, remediate and mitigate the effects of the impacts. As such, they constitute "public works of improvement" within the meaning of Labor Code Section 1720(c)(2). The City agrees to contribute no more money, or the equivalent of money, to the overall project than is required to perform this public improvement work. In addition, the City will have no proprietary interest in the overall project. Under this Agreement, the City agrees to pay or reimburse the Applicant and/or RBP in a timely manner for any such costs, reasonably and necessarily incurred, associated with the conditions and compliance thereof, and are entering into this Agreement for that purpose. AGREEMENT: WHEREFORE, in consideration of the above-recitals and the terms and conditions set forth below, the parties agree as follows. 1. Execution of Access Agreement. On or before approval of this Agreement by the Ukiah City Council, RBP shall sign the Access Agreement attached hereto as Exhibit B. 2. Intent of Agreement. The intent of this Agreement is for the City to pay and/or reimburse RBP and/or Applicant for increase in costs, reasonably and necessarily incurred by RBP and/or Applicant to comply with the Conditions. "Increase in cost," as used in this Agreement means increased costs of the project to include: work required by the Conditions; work required to comply with the Conditions, including payment of prevailing wages to the extent required by Labor Code section 1720; performance -of other work affected by the Conditions; increased in design costs; increased construction administrative costs reasonably and necessarily associated with the work required to comply with the Conditions or work affected by the condition; and, increased costs resulting from increased time to complete the Project resulting from compliance with the Conditions, provided that the party seeking reimbursement for an increase in costs attributable to delay could not have avoided the delay through the exercise of due diligence. 2 3. Procedure for the approval of costs. Except as otherwise set forth herein, with respect to all costs to be paid or reimbursed by City under this Agreement, the City shall pay all of an approved cost within thirty (30) days after it receives an invoice for the amount of the approved cost. The Applicant and/or RBP may obtain approval for a cost using the following procedure: a. The Applicant and/or RBP ("claimant") shall submit to the City for approval a written description of the work, including an itemized cost of all materials or fixtures to be used or installed in the performance of the work, the method used to procure bids or proposals to perform the work or to estimate the cost of the work, the qualifications and licensing of the contractor and the cost of the work. The City shall approve or disapprove the expense within fifteen (15) days of its receipt of all the information reasonably required or requested by the City to evaluate to claim by giving written notice of its decision to the claimant; provided, however, that City shall request any additional information not already submitted with the claim within seven (7) days of the claim's initial submittal, and, if that should occur, the City must approve or disapprove the claim within ten (10) days of submittal of such additional information. b. In order for a claimed cost to be reimbursed, the City must approve the expense as necessary and reasonable, such approval not to be unreasonably withheld. c. The Applicant and/or RBP may submit any disapproved cost to binding dispute resolution as follows. Within thirty (30) days of the Effective Date, by mutual agreement, the Parties shall designate a person to resolve disputes concerning claims for payment and/or reimbursement. The designated person ("Arbitrator") shall be a person with appropriate training and experience in civil engineering and/or the building trades. Except as otherwise set forth herein, the parties shall share equally the Arbitrator's fees and expenses. Within fifteen (15) days after the City denies an application for the approval of a claimed cost or reimbursement expense, the claimant may request resolution by the Arbitrator by giving the City and the Arbitrator written notice thereof. The notice shall include all information the claimant wants the Arbitrator to consider in resolving the dispute. Failure to give timely and adequate notice of a request for dispute resolution waives the right to dispute the disapproved cost. Within fifteen (15) days after the City receives the written notice from the claimant, the City shall submit to the Arbitrator a written response to claim with a copy to the claimant. The City's submission shall include all information it wants the Arbitrator to consider in resolving the dispute. Within five (5) days after the City submits its response or after the City's response was due, if no response is filed by the City, the Arbitrator shall schedule and give notice of the date, time and location of a hearing at which both the claimant and the City may appear with or without counsel and any witnesses they wish to call. The hearing shall be conducted no sooner than ten (10) and no later than fifteen (15) days after notice of hearing has been given. After considering the written submissions and any evidence, argument or answers by the parties to the Arbitrator's questions, the Arbitrator shall decide whether the City's decision should be upheld or the claimed expense should be allowed in whole or in part. The Arbitrator shall notify the parties of his or her decision within ten (10) days after the conclusion of the hearing. The Arbitrator may order one party to pay all of the expenses of the Arbitration and to reimburse all or a portion of attorneys' fees incurred by the other party in participating in the Arbitration, if he or she determines that the party's position was not reasonable in light of the provisions of the agreement and the facts presented to the Arbitrator. The decision of the Arbitrator shall be final and binding on the parties. d. The City shall pay Applicant and/or RBP $250.00 per claim for expense reimbursement to compensate the Applicant and/or RBP for the cost of submitting and processing the claim. e. Only work performed by Applicant and/or RBP under contract to comply with the Conditions, the costs of which is paid or reimbursed by City under this Agreement, will require the payment of prevailing wages required for public works under the California labor Code. Accordingly, the City shall reimburse the Applicant and/or RBP for the difference between the cost of constructing the Project without paying prevailing wages and the cost of constructing the Project with the payment of prevailing wages, including the actual increased costs incurred by the Applicant to comply with the prevailing wage requirements in Labor Code Section 1720 et seq. That claim shall be submitted pursuant to the procedures specified in this paragraph 3. f. All awards rendered by decision of the Arbitrator, as attorney's fees, costs, and expenses associated therewith, and/or for the claim expense set forth above in subparagraph d, shall be paid by City within thirty (30) days of receipt of the Arbitrator's decision or receipt of claim, as the case may be. 4. Costs of Condition No. 2. If the Applicant and/or RBP anticipates that they will incur an Increase in cost in complying with a Soil and Groundwater Management Plan prepared by the City in compliance with Condition No. 2, they shall notify the City of the proposed work or expense giving rise to the cost as soon as possible. The City may elect to arrange for the performance of that work, as long as that will not cause undue delay in the completion of the Project. The Applicant or RBP shall reasonably cooperate with the City in performing or arranging for the performance of the work. If the City does not elect to perform or contract for the performance of the work, the City will pay for the work in accordance with paragraph 3. If the City elects to perform the work or contract with another to perform the work, and Applicant and/or RBP anticipates incurring, or actually incurs, an increase in construction cost as a result thereof, the City shall pay said costs in accordance with paragraph 3. 5. Design Costs to comply with Conditions No. 2, 3, and 4. If the Applicant and/or RBP anticipates that it will incur designs costs, or an Increase in costs, as a result thereof, to comply with Conditions No. 2, 3 and/or 4, the City shall pay those costs in accordance with paragraph 3. 6. Costs of Condition Nos. 3 and 4. The City will pay for any Increase in costs required to comply with Condition Nos. 3 and/or 4 in accordance with paragraph 3. The 4 parry seeking payment of that cost shall submit such information as City reasonably requests to determine that the cost represents an Increase in cost of the Project. 7. The storm drain. If the water samples from the storm drain referenced in Condition No. 5 test positive for impacts and/or the City is required by a regulatory agency to prevent groundwater discharge from the french drain to the storm drain system, the Applicant or RBP shall reasonably cooperate with the City to prevent the discharge of impacted groundwater from the Property to the storm drain system. If the Applicant and/or RBP anticipates that it will incur a cost in complying with this requirement, it shall notify the City of the proposed work or expense giving rise to the cost as soon as possible. The City may elect to arrange for the performance of that work. The Applicant or RBP shall reasonably cooperate with the City in performing or arranging for the performance of the work. If the City does not elect to perform or contract for the performance of the work, the City will pay for the design costs, Increase in costs, and the work in accordance with paragraph 3. If the City elects to perform the work or contract with another to perform the work, and Applicant and/or RBP anticipates incurring, or actually incurs, an Increase in cost as a result thereof, the City shall pay said costs in accordance with paragraph 3. 8. Indemnification. The City shall indemnify and hold Applicant and RBP harmless for, and from, any and all claims, demands, liabilities, costs, damages, and/or expenses, however characterized, arising out of and/or in connection with the City's (including without limitations its employees, agents, subcontractors, assigns, transferees, successors, or otherwise) performance of any work under this Agreement, or any claims by third parties based on the design or construction performed to comply with the Conditions, whether such claims, demands, liabilities, costs, damages, and/or expenses are caused by the City, its employees, agents, subcontractors, assigns, transferees, successors, or otherwise, excepting only that portion of such injury or harm as is caused by Applicant and/or RBP's negligence. The City shall indemnify and defend Applicant and/or RBP, including, but not limited to, payment of all attorney's fees, costs, damages, and/or expenses incurred by Applicant and/or RBP, and/or such awards against it, associated with or founded upon the aforementioned claims, demands, liabilities, costs, damages, and/or expenses. At all times during the Term of this Agreement, City shall maintain and shall provide proof of comprehensive general or commercial liability insurance of at least two million dollars ($2,000,000.00), or comparable coverage from joint powers agencies providing the equivalent of insurance coverage to the City, and provide Applicant and RBP with a policy declaration, or other appropriate documentation, naming them as additionally insured. The City shall provide Applicant and RBP with written notice of any cancellation of coverage and shall renew insurance certificates as they expire so there is no lapse in coverage. 9. Miscellaneous. a. The parties agree that this Agreement shall not operate to limit, waive, or otherwise effect any claim by RBP for costs to it resulting from imposition of the Conditions, including, but not limited to, holding costs of the Property, and the lost use 5 and/or value of money RBP would have otherwise received in selling Lot B 1-B (from at least November 5, 2009, until escrow closes on Lot B 1-B) but for the delays associated with the conditions. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all other prior writings and oral negotiations concerning the same subject matter, including, but not limited to, the Indemnification Agreement made part of the Planning Permit Application signed by Applicant that applies to the subject matter of this Agreement. The Access Agreement between the City and RBP is not affected by the terms of this Agreement. Except to the extent based on the Conditions, this agreement does not supersede that portion of the Indemnification Agreement that pertains to any claim, action or proceeding brought against the City or its agents, officers, council members, employees, boards, commissions or Council, the purpose of which is to attack, set aside, void, or annual any approval of the use permit application or related decision, or the adoption or certification of any environmental documents or negative declaration which relates to that approval. b. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. c. Any notices, documents, correspondence or other communications concerning this Agreement may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served, received, or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO RBP: Gary L. Akerstrom Redwood Business Park of Ukiah 425 Talmage Road Ukiah, CA 95482 FAX: 707-462-5681 IF TO CITY: City of Ukiah Attention: Tim Eriksen Ukiah Civic Center 300 Seminary Avenue Ukiah, CA. 95482 FAX: 707-463-6201 IF TO APPLICANT: Steve Honeycutt Guillon, Inc. 2550 Lakewest Drive, Suite 50 Chico, CA. 95928 FAX: 530-897-6455 d. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties 6 hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Mendocino County, California. e. This agreement shall be assignable to any owner or successor-in-interest to Lot Bl-B and shall inure to the benefit of and be binding upon the successors, assigns, or transferees of said Lot. The term "Applicant," when used herein shall include any such permitted successor, assignee, or transferee. f. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. However, in the event of any action or proceeding arising out of, or brought to enforce, this Agreement, the prevailing party therein shall be entitled to an award against the other of all attorney's fees, costs, and expenses incurred therein. g. This Agreement is entered into for the sole benefit of City, Applicant, RBP and their permitted successors and assigns and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. This Agreement is binding and applicable only in relation to the particular use application referenced above. h. Section headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. i. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. j. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement, based upon the substantial benefit of the bargain for any party is materially impaired, which determination as made by the presiding court or arbitrator of competent jurisdiction shall be binding, then both parties agree to substitute such provision(s) through good faith negotiations. k. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 7 1. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed"by and through their respective authorized officers, and this Agreement shall become effective on the Effective Date. By El Dorado Estates Corporation, its general partner f s~.-- ary- . Akerstrom, President, Dorado Estates Corporation GUILLON, INC. BY; 4 4,- Steve oneycutt,general Manager 8 Z8196 VINNOdI'IV]'NVINN VI9 6019119 .aZ.,1 WON 30VN101 929 NMV.n dO NN9d SSBNI5118 OOOM03N dN91~] ~~we 90 16l96MIS420'.. 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L f~ EXHIBIT B Access Agreement Redwood Business Park of Ukiah, a California Limited Partnership This Access Agreement (the "Agreement") is entered on March 2010 ("Effective Date"), in Ukiah, California between the City of Ukiah ("City), a general law municipal corporation, and Redwood Business Park of Ukiah, a California Limited Partnership ("RBP"), who is the owner of real property located in Ukiah, California, known as Mendocino County Assessor's Parcel Number 180-080-25 and also known as Lot B-1 as shown on the Final Map of Redwood Business Park of Ukiah, - Unit I, filed. in Map Case 2, Drawer 47, Page 24, Mendocino County Records (the "Property"). RECITALS. 1. The City owns property located at 1320 Airport Road, also known as Mendocino County Assessor's Parcel No. 003-280-05 ("Corp Yard"), which has been used by the City as an operations center for municipal departments, including the City's public works department and its motor pool. 2. This City has and is currently undertaking an ongoing investigation of the release of contaminants, including petroleum hydrocarbons and fuel oxygenates (collectively "the impacts") to the environment from former underground fuel storage tanks ("USTs") located at the Corp Yard. The North Coast Regional Water Quality Control Board ("Regional Board") has approved a Feasibility Study and Corrective Action Plan ("FS/CAP") dated December 1, 2005, and a Remedial Action Plan, dated June 2007 ("Action Plan"), which includes a work plan to further investigate the impact of the USTs on the Property. The FS/CAP calls for the installation of groundwater monitoring wells on the Property followed by quarterly sampling for a period of one year. The number and location of each monitoring well to be installed. on the Property in accordance with the approved FS/CAP are depicted as MW 21B, MW 22, MW 23B and MW 24 on the attached Exhibit A, which is incorporated herein by reference. RBP has installed a french drain and storm drains on the Property. The City requires access to the Property to take water samples from the storm drain system. The City's authorized work on the Property, henceforth termed as "Authorized Site Work," includes, and is limited to, construction of the aforementioned monitoring wells, survey for said monitoring wells, collection and analysis of groundwater samples from said monitoring wells and/or storm drains, and reporting thereof. The Action Plan includes a work plan to further investigate and remediate the impacts of the USTs on the Property. The specifics of that farther investigation and remediation ("Additional Authorized Site Work") will be developed based on the results of the Authorized Site Work. The City may require access to the Property for the Additional Authorized Site Work, which access is subject to further agreement between the parties. 3. The purpose of this Agreement is to allow the City and its authorized representatives, contractors, and subcontractors access to the Property for the purpose of engaging in the Authorized Site Work. Hereafter, all references to the "City" include its authorized representatives, contractors and subcontractors. 4. This Agreement allows for the City to enter the Property as reasonably necessary to perform the Authorized Site Work, subject to the terms and conditions of this Agreement. AGREEMENT In consideration of the above-recited facts and the terms and conditions as further stated herein, the parties agree as follows: 1. Right of Entry, and Payment. During the Term of this Agreement, RBP hereby grants the City, as may be reasonably necessary, a right of access and use to enter the Property in order to perform the Authorized Site Work. In exercising this right of entry, City shall not unreasonably interfere with RBP's development plans for the Property, its use of the Property, or the value of the Property. 2. Term. The term of this Agreement begins on the Effective Date and continues until December 31, 2015, unless earlier terminated as provided in paragraph 10, below. 3. Work to be Performed. Authorized Site Work. The City shall provide everything necessary to perform and complete the Authorized Site Work. The City shall have sole responsibility for the Authorized Site Work performed and shall be responsible for directing and controlling the manner and means of accomplishing the Authorized Site Work. City shall be responsible for all of the costs of performing the Authorized Site Work. The City shall keep the Property free and clear of all mechanic's and materialman's liens arising from or relating to the performance of the Authorized Site Work. If a mechanic's or materialman's lien is filed against the Property as a result of the City's performance of work authorized by this Agreement, the City shall cause any such lien to be bonded or discharged of record within twenty (20) days of being notified of the lien. 4. Notification. The City shall give a minimum of 24-hour notice to RBP before entering the Property to perform any part of the Authorized Site Work unless otherwise authorized by RBP. 2 5. Applicable Law and Regulations. In exercising its rights under this Agreement, the City will comply with all applicable laws, statutes, regulations, ordinances, or directives of whatsoever nature with respect to the Authorized Site Work, including, without limitation, all health, safety, and environmental laws, directives, ordinances, regulations, or statutes applicable to such work. 6. Restoration. The City shall use its best efforts to avoid interfering with RBP's use of the Property. Upon completion of each phase or item of any activity contemplated by the Authorized Site Work, the City shall immediately repair and restore all affected areas of the Property to its original condition existing before commencement of the Authorized Site Work, or to an "improved" condition if the Property is improved, or as close thereto as is reasonably possible. An intent of this provision to require the City to restore the Property as it completes different work on the Property and not wait completion of all Authorized Site Work prior to being required to perform restoration. 7. Indemnification. The City shall indemnify and hold RBP harmless for, and from, any and all claims, demands, liabilities, costs, damages, and/or expenses, however characterized, arising out of and/or in connection with the City's (including without limitations its employees, agents, subcontractors, assigns, transferees, successors, , or otherwise) performance of Authorized Site Work and/or the restoration of the Property pursuant to this Agreement, whether such claims, demands, liabilities, costs, damages, and/or expenses are caused by the City, its employees, agents, subcontractors, assigns, transferees, successors, or otherwise, excepting only that portion of such injury or harm to the extent the same is caused by RBP's active negligence. The City shall indemnify and defend RBP, including, but not limited to, payment of all attorney's fees, costs, damages, and/or expenses incurred by -BP, and/or such awards against it, associated with or founded upon the aforementioned claims, demands, liabilities, costs, damages, and/or expenses. At all times during the Term of this Agreement, City shall maintain and shall provide proof of comprehensive general or commercial liability insurance of at least two million dollars ($2,000,000.00), or comparable coverage from joint powers agencies providing the equivalent of insurance coverage to the City, and provide RBP with a policy declaration, naming RBP as additionally insured. The City shall provide RBP with written notice of any cancellation of coverage and shall renew insurance certificates as they expire. 8. Entire Understanding. This Agreement sets forth the entire understanding between the City and RBP with respect to the subject matter of this Access Agreement and supersedes all prior negotiations and dealings pertaining to this Agreement. 9. Modification. No change in, addition to, or waiver of any of the provisions of this Agreement shall be binding upon either parry unless it is established in writing and signed by each party. 10. Termination. This Agreement may be terminated by the City at its sole discretion with thirty days (30) days' written notice to RBP. However such termination will not release City from its responsibility for Payment, Restoration, or Indemnification, 3 will not release City from its responsibility for Payment, Restoration, or Indemnification, as stated in the aforementioned Sections of this Agreement, or any other obligation that may have arisen or may arise as a result of this Agreement.. 11. Successors and Assigns. This Agreement is binding upon and inures to the benefit of the Parties' successors, transferees, and assigns. 12. Notice. The person authorized to give and receive notices and information on behalf of each party and the address and fax number for that person is set forth below. A decision communicated by the authorized representative of each party shall constitute the decision of the party, unless the other party has received prior notice, as provided herein, that the authorized representative's decision is not the decision of the party. Whenever notice or other communication is permitted or required by this Agreement, it shall be deemed given when personally delivered or when received, if delivered by overnight courier or fax, or 48 hours after it is deposited in the United States Mail with proper first class postage affixed thereto and addressed as follows: City of Ukiah Jane Chambers, City Manager Ukiah Civic Center 300 Seminary Ave. Ukiah, CA. 95482 Fax: 707-463-6201 Redwood Business Park of Ukiah Gary L. Akerstrom Redwood Business Park of Ukiah 425 Talmage Road Ukiah, CA 95482 Fax: 707-462-5681 13. Access Agreement. Subject to the terms and conditions stated herein, this signed Access Agreement is effective as of the Effective Date. By executing this Agreement, the following persons represent they maintain actual authority to act, including the act of executing this Agreement and for the matters set forth herein, on behalf of the entity for whole said persons execute this Agreement. [Signatures on Next Page] 4 CITY OF UKIAH Jane City , City of Ukiah 311~----) o / Date REDWOOD BUSINESS PARK OF UKIAH, A California Limited Partnership Red~6o usiness Park of Ukiah Al ali Limited Partnership By El Dorado Estates Corp. Its General Partner By Gary L. Akerstrom, President f ; Date 5 ENGINEERING PROPOSED MONITORING WELLS CITY OF UKIAH CORPORATION YARD 1320 AIRPORT ROAD UKIAH, CALIFORNIA ACCESS AGREEMENT EXHIBIT A EXHIBIT C Conditions 1-5 Agreement Regarding Conditions of Approval For Guillon Use Permit 09-31 On or before the fifth day after final approval of the Permit, the applicant and property owner shall sign and subsequently comply with an Access Agreement in the form of Exhibit A, attached, or as modified with approval of the City Attorney. The applicants shall comply with a Soil and Groundwater Management Plan prepared by the City which is consistent with the requirements of the North Coast Regional Water Quality Control Board. The City shall work closely with the applicants to design the Soil and Groundwater Management Plan to balance the testing, monitoring, and remediation of soil and groundwater with the site planning and layout of the project. Any plans for reuse or disposal of contaminated soil shall be reviewed and approved by the North Coast Regional Water Quality Control Board. 3. The applicants shall install in all structures constructed on the property for human occupancy a vapor barrier of Liquid Boot or equivalent, all in accordance with plans submitted to and approved by the City Engineer. 4. The inverts of all new storm drains constructed on the property shall be designed and constructed to prevent groundwater intrusion, said design shall be approved by the City Engineer. If the storm drain for the loading dock is at an elevation that could potentially cause groundwater intrusion, special design measures, approved by the City Engineer, shall be used to prevent that groundwater from discharging into the City's storm drain system. Applicant shall determine groundwater elevation in a manner approved by the City Engineer. 5. The applicant/owner shall grant unimpeded access to the City to take water samples on a regular basis from the storm drain system or from future monitoring wells. If the water samples test positive for contaminants and/or the City is required by a regulatory agency to prevent groundwater discharge from the french drain to the storm drain system, the applicant/owners shall cooperate with the City to prevent the discharge of contaminated groundwater from the property to the storm drain system. NOTE: The above conditions are numbered 13-17 on the Use Permit conditionally approved by the Planning Commission.